Citation Nr: 0501958
Decision Date: 01/27/05 Archive Date: 02/07/05
DOCKET NO. 03-07 289 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a lung disorder due
to exposure to asbestos.
2. Entitlement to service connection for diabetes mellitus
as secondary to herbicide exposure.
3. Entitlement to service connection for Bell's palsy as
secondary to diabetes mellitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Stanley Grabia, Counsel
INTRODUCTION
The veteran had 1 year and 15 days of recognized active
service during the period from September 1962 to January
1965.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a June 2002 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida.
FINDINGS OF FACT
1. A lung disorder was not identified during the veteran's
military service or until many years thereafter and no lung
disorder is shown to be related to asbestos exposure in
service.
2. The veteran had no foreign service and the only
disability for which service connection has been established
is hearing loss, left ear.
3. Diabetes mellitus is not shown during active service or
until many years after separation and the competent evidence
does not relate post-service development of diabetes mellitus
to any incident or event of active service.
4. Bell's palsy is not proximately due to or the result of a
service-connected disability, and there is no competent
medical evidence relating the veteran's post-service Bell's
palsy to service.
CONCLUSIONS OF LAW
1. A lung disorder was not incurred in or aggravated by
active military service, nor is a lung disorder due to in-
service asbestos exposure. 38 U.S.C.A. §§ 1110, 1112, 1113,
1131, 1137, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.303,
3.309, 3.311 (2004).
2. Diabetes mellitus was not incurred in or aggravated by
military service and may not be presumed to have been
incurred in service. 38 U.S.C.A. §§ 1112, 1116, 1131, 5103,
5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304,
3.307, 3.309 (2004).
3. Bell's palsy was not incurred in or aggravated by active
military service and is not due to a service-connected
disability. 38 U.S.C.A. §§ 1110, 1153, 5102, 5103, 5103A,
5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became
law. Regulations implementing the VCAA have been published.
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and
the implementing regulations apply in the instant case. A
review of the record shows the veteran was notified of the
VCAA as it applies to claims of entitlement to service
connection by the statement of the case (SOC) dated in
February 2003.
A VCAA notice consistent with 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim.
In this case, the February 2003 SOC provided to the veteran
generally informed him of the evidence not of record that was
necessary to substantiate his claims and identified which
parties were expected to provide such evidence.
All the VCAA requires is that the duty to notify be
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error).
The revised VCAA duty to assist requires that VA make
reasonable efforts to assist the claimant in obtaining
evidence necessary to substantiate a claim. See 38 C.F.R. §
3.159. In this case, the veteran's service medical records
and all identified post-service medical records relevant to
the issues on appeal have been requested or obtained.
The Board notes that the available medical evidence is
sufficient for adequate determination of the issue addressed
in this decision. Therefore, the Board finds the duty to
assist and duty to notify provisions of the VCAA have been
fulfilled.
Background. Service records reflect that the veteran entered
service in September 1962 and was trained as a military
policeman. In June 1963 he absented himself without
authority. He was classified as a deserter in July 1963 and
remained so until September 1964 when he was apprehended by
the FBI and placed in the stockade at Ft. Jay, N.Y. After
several hours in the stockade he as seen by a psychiatric
consultant because of bizarre behavior and transferred to a
Naval hospital at St. Albans where he remained for 11 days.
He was then transferred to Valley Forge General Hospital
where he remained until shortly before his release from
service. The service medical records are entirely silent as
to any chronic lung disorder, diabetes mellitus or Bell's
palsy. The service records are silent for any evidence of
assigned duties or work involving known or likely exposure to
asbestos.
VA clinical records in May-June 2000 noted the veteran was
seen for recent new onset of Bell's palsy, right. He
apparently woke up with Bell's palsy in May 2000. He also
was noted to have been recently diagnosed with new onset,
uncontrollable diabetes mellitus.
The file also contains private medical records including a
November 1970 letter from C.L. Dykstra, M.D., P.A., noting
the veteran was treated for hoarseness and a sore throat.
Dr. Dykstra noted the condition may be related to exposure to
chemicals at work; and an October 1998 letter from Jack H.
Hasson, M.D., noting bilateral pleural plaques consistent
with asbestos exposure. The file also contains X-rays in
March 2001 showed possible infiltrates in the left lung.
Legal Criteria. Service connection may be established by a
showing that the veteran currently suffers from a disorder
that is attributable to disease or injury incurred in or
aggravated by service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R.
§ 3.303(a). For the showing of chronic disease in service,
there is required a combination of manifestations sufficient
to identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic, or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
Where a veteran served ninety days or more during a period of
war and certain chronic diseases, including diabetes
mellitus, become manifest to a degree of 10 percent within
one year from date of termination of such service, such
disease shall be presumed to have been incurred in service
even though there is no evidence of such disease during the
period of service. This presumption is rebuttable by
affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101,
1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2004).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2004).
To establish service connection for a disability, a claimant
must submit (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances lay testimony,
of in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury. Pond
v. West, 12 Vet. App. 341, 346 (1999). Where the
determinative issue involves a medical diagnosis, competent
medical evidence is required. This burden may not be met by
lay testimony because laypersons are not competent to offer
medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492,
494-95 (1992).
In claims for VA benefits, when there is an approximate
balance of positive and negative evidence regarding any issue
material to the determination of a matter, the VA shall give
the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b)
(West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49,
54 (1990) (when a claimant seeks VA benefits, and the
evidence is in relative equipoise, the law dictates that he
or she shall prevail).
Lung disorder due to asbestos exposure. There is no specific
statutory or regulatory guidance with regard to claims for
service connection for asbestosis or other asbestos-related
diseases. The VA Manual 21-1, Part VI, para. 7.21 (Feb. 5,
2004) contains guidelines for the
development of asbestos exposure cases. Part (a), in
essence, acknowledges that inhalation of asbestos fibers can
result in fibrosis and tumors, and produce pleural effusions
and fibrosis, pleural plaques, mesotheliomas of the pleura
and peritoneum, and cancer of the lung, gastrointestinal
tract, larynx, pharynx and urogenital system (except the
prostate), with the most common resulting disease being
interstitial pulmonary fibrosis (asbestosis).
VA Manual 21-1, Part VI, para. 7.21(b) pertains to
occupational exposure, and acknowledges that high exposure to
asbestos and a high prevalence of disease have been noted in
insulation and shipyard workers. Noted is that the latent
period varies from 10 to 45 or more years between first
exposure and development of disease. VA Manual 21-1, Part
VI, para. 7.21(c) provides that the clinical diagnosis of
asbestosis requires a history of exposure and radiographic
evidence of parenchymal lung disease.
VA Manual 21-1, Part VI, para. 7.21(d) provides that VA must
determine whether military records demonstrate evidence of
asbestos exposure in service; whether there is pre-service
and/or post-service evidence of occupational or other
asbestos exposure; and then make a determination as to the
relationship between asbestos exposure and the claimed
diseases, keeping in mind the latency and exposure
information pertinent to the veteran. See also VAOPGCPREC 4-
2000; Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997).
The veteran maintains that he currently has lung problems due
to exposure to asbestos while stoking coal fired boilers
encased in asbestos during service. In addition he alleged
that he had to chip paint from ships while at Ft. Jay, N.Y.
Despite the veteran's assertion that he was exposed to
asbestos during service, the service records do not contain
any information which would tend to show that he was assigned
duties or work involving known or likely exposure to
asbestos. He was a military policeman in service. In
addition there are major discrepancies between his reports of
exposure and data contained in the service records. Finally
there is no treatment for respiratory symptoms, or a
diagnosis of a respiratory condition shown in service. The
veteran's separation examination report, dated in December
1964, was silent as to any lung disorder.
In addition, there is no post-service medical evidence of
lung abnormalities until November 1970, at which time the
veteran was treated for hoarseness and a sore throat by Dr.
C.L. Dykstra at the Morton Plant Hospital. At that time the
doctor opined the complaints were definitely related to
exposure to chemicals at work, as there was no other apparent
cause.
In an October 1998 letter, Dr. Jack H. Hasson concluded that
the veteran had bilateral pleural plaques consistent with
asbestos exposure. It was his estimation that the veteran
had no active infiltrates in his lungs, and there was no
diagnosis of asbestosis disease.
Although the veteran contends that he was exposed to asbestos
while stoking coal and chipping paint off of ships during
service, service records disclose that he served his entire
period of service as a military policeman, and not in any
position with duties as a paint chipper, or as a coal furnace
stoker.
In short, the Board finds that the veteran's statements to
the effect that he was exposed to asbestos to be of limited
probative value, inasmuch as they are unsupported by the
service medical and personnel records showing that he served
in no other capacity than as a military policeman, and that
he was discharged from service after a military physical
board found him mentally unsuitable for continued service.
The Board also notes that nothing in his service medical or
personnel records corroborates his account. In light of the
inconsistency between the veteran's account of his exposure
and official service records, and as the veteran has not
otherwise submitted any evidence supportive of his claim that
he was exposed to asbestos or any other irritant at issue in
service, the Board does not accept the veteran's account of
his exposure in service. The Board stresses that neither Dr.
Hasson nor Dr. Dykstra suggested that any current lung
disorder was etiologically related to service. Nor is there
otherwise any other evidence linking the veteran's current
lung disorder to his period of service. In fact, the
evidence in Dr. Dykstra's 1970 letter indicated the veteran's
throat at the time was irritated by chemical exposure in his
civilian job. The Board therefore finds that the
preponderance of the evidence is against the claim, and
service connection for a lung disorder due to exposure to
asbestos is denied.
Diabetes mellitus. Under 38 U.S.C.A. § 1116(a)(1), certain
diseases are presumed to have been incurred or aggravated by
a veteran's active duty even if there is no record of such a
disability during his active duty. For this presumption to
apply, the disease must be one of those listed in 38 U.S.C.A.
§ 1116(a)(2) and become manifest as specified in that
provision; and the veteran must have served in the Republic
of Vietnam between January 1962 and May 1975. Diabetes
Mellitus (Type 2) is one of the diseases listed in 38
U.S.C.A. § 1116(a)(2). See also 38 C.F.R. §§ 3.307 and
3.309.
Section 3.309(e) states that those diseases on the list
"shall be service connected" if a veteran was exposed to an
herbicide agent during active service. Section
3.307(a)(6)(i) and (ii) define the term "herbicide agent" and
require the diseases listed at §3.309(e), with exceptions not
relevant here, to have become manifest to a degree of 10
percent or more at any time after service. Subdivision (iii)
provides: "A veteran who, during active military, naval, or
air service, served in the Republic of Vietnam during the
period beginning on January 9, 1962, and ending on May 7,
1975, shall be presumed to have been exposed during such
service to an herbicide agent, unless there is affirmative
evidence to establish that the veteran was not exposed to any
such agent during that service."
VA outpatient treatment records confirm the veteran has type
II diabetes mellitus. However, service records show that the
veteran did not have service in Vietnam. He has not alleged
that he ever set foot on land in Vietnam. The service
records establish that he had no foreign service. Therefore,
as the veteran did not serve in Vietnam, he is not presumed
to have been exposed to an herbicide agent during such
service. As the veteran's service was entirely within the
continental United States during the Vietnam War, service
connection for diabetes mellitus is not for consideration
under the presumptive provisions applicable to Agent Orange
exposure. 38 C.F.R. § 3.309(e) (2004).
Even if a veteran is found not entitled to the regulatory
presumption, his claim must still be reviewed to determine if
service connection can otherwise be established. Cf. Combee
v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Veterans' Dioxin and
Radiation Exposure Compensation Standards (Radiation
Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724,
2727-29 (1984), does not preclude a veteran from establishing
service connection with proof of actual direct causation).
The veteran's service medical records are silent regarding
any findings of any blood sugar abnormalities or other
indication of diabetes mellitus. Likewise, the post-service
medical evidence of record is negative for any notation of
diabetes mellitus for many years after service separation.
In fact, diabetes mellitus was apparently not diagnosed until
about May 2000. Moreover, there is no indication, nor does
the veteran contend, that he had symptoms of diabetes on a
continuous basis following his service separation. Finally,
the Board observes that the probative evidence of record
contains no indication that the veteran's current diabetes is
related to his active service. Thus, the Board finds that
service connection for diabetes is not warranted on a direct
basis, under the provisions of 38 C.F.R. § 3.303(d), or under
the presumptive provisions set forth at 3.309(a).
After carefully reviewing the evidence of record, the Board
must deny service connection for diabetes mellitus. In that
regard, the Board notes that there are no medical opinions
which offer a nexus opinion that the veteran's diabetes
mellitus is related to any incident of his military service.
There is no medical evidence of file which tends to support
the veteran's claim or to relate the veteran's diabetes
mellitus to service.
For the reasons expressed in detail above, the Board finds
that a preponderance of the evidence is against the claim of
service connection for diabetes mellitus. The benefit of the
doubt doctrine is not for application where the clear weight
of the evidence is against the claim. Gilbert, 1 Vet. App.
at 55; 38 U.S.C.A. § 5107(b).
Bell's palsy secondary to diabetes mellitus. The veteran
asserts that his Bell's palsy is secondary to his diabetes
mellitus. Secondary service connection may be granted for a
disability which is proximately due to or the result of an
established service- connected disorder. 38 C.F.R. § 3.310.
Secondary service connection includes instances in which
there is additional disability of a non-service-connected
condition due to aggravation by an established service-
connected disorder; when aggravation of a non-service-
connected condition is proximately due to or the result of a
service- connected condition, the veteran shall be
compensated for the degree of disability (but only that
degree) over and above the degree of disability existing
prior to the aggravation. Allen v. Brown, 7 Vet. App. 439
(1995).
The Board notes that the veteran has claimed his Bell's palsy
is secondary to diabetes mellitus. However service
connection for diabetes mellitus was denied earlier in this
decision.
Furthermore, service medical records do not show treatment
for or a diagnosis of Bell's palsy. The veteran does not
contend that he had been diagnosed with Bell's palsy during
active service. He was first diagnosed with Bell's palsy in
May 2000, or almost 35 years after service. Finally, there
is no medical evidence of a nexus between the veteran's
Bell's palsy and active service.
The Board notes that the veteran was not provided a VA
examination with his claims. However, even if it is assumed
that he has Bell's palsy, the veteran is not entitled to
secondary service connection as the veteran is not service
connected for diabetes mellitus. Further, there is no
evidence that he had Bell's palsy in service, and there is no
competent medical evidence showing that his Bell's palsy was
related to service.
Accordingly, the Board concludes that the preponderance of
the evidence is against a finding that the veteran's Bell's
palsy began in service, or was otherwise related to service,
or is secondary to a service-connected disorder. Thus, the
veteran's service connection claim for Bell's palsy is
denied.
ORDER
Service connection for a lung disorder is denied.
Service connection for diabetes mellitus is denied.
Service connection for Bell's palsy is denied.
______________________________________________
Gary L. Gick
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs